Ekstrom v. Hall

• Decision Date: 15 April 1897
• Citation: 38 A. 106,90 Me. 186
• Parties: EKSTROM v. HALL et al.
• Court: Maine Supreme Court

38 A. 106

90 Me. 186

EKSTROM

v. HALL et al.

Supreme Judicial Court of Maine.

April 15, 1897.

(Official.)

Exceptions from supreme judicial court, Hancock county.

Trover by Katie A. Ekstrom against the Standard Granite Company, Cyrus J. Hall, and others. Verdict for $607.65. Included in the verdict, according to the jurors' answers to special questions framed by the presiding justice, were the following items: "Carr boarding house," valued at $300; "small house on quarry," valued at $50: "house on land of Mrs. O'Dell," valued at $102.

The plaintiff claimed title to these three houses as her personal property, and that they had been converted by defendants to their own use. Defendants claimed that the houses were real estate (that is, the "Carr boarding house" and "small house on quarry"), and that title to these two houses was in defendant the Standard Granite Company, by virtue of a deed of the land upon which they stood, from one Carr, and an assignment and foreclosure of a mortgage upon the same land, which mortgage had also been given by Carr.

These two houses were built upon the land by the plaintiff with Carr's consent, after the mortgage by Carr to Newman, and with the understanding, between the plaintiff and Carr, that they were to be and remain the property of the plaintiff. Defendants except. Overruled on conditions.

H. E. Hamlin, for plaintiff.

A. W. King and O. F. Fellows, for defendants.

WISWELL, J. The plaintiff sued for the conversion of, among other things, "one house known as the Carr boarding house," and "one small house on the quarry." The plaintiff claimed and introduced evidence tending to show that these houses were built by her upon the land of one Carr, with the permission of the landowner, and under an arrangement with him that the houses were to be hers.

But the land upon which these houses were built was subject to a mortgage to one Newman, of whom Carr had bought, given upon the same day as the conveyance to Carr. Newman commenced a foreclosure of the mortgage, and, before the time of redemption had expired, assigned it to the defendants Hall, Warren, and Mixer, who subsequently conveyed the same property to the defendant corporation, the Standard Granite Company. The defendants were in possession of the real estate under a deed from Carr, and under the assignment of the mortgage from Newman.

The houses were both built after the execution of the mortgage to Newman, and while it was held by him. There was no evidence introduced in the case of any agreement, arrangement, or understanding of any kind between the plaintiff and the mortgagee in regard to the building of these houses, nor was it claimed by the plaintiff that there was any such arrangement.

Counsel for defendants requested this instruction: "That these defendants are not liable in this action for the buildings described in the writ as the Carr boarding house, nor for the little house described in the writ as on the Carr quarry, because the title to those houses is in the defendants, by virtue of the mortgage from Carr to Newman, given before the buildings were built; there being no evidence in this case that those buildings were built upon the land covered by the mortgage by the consent of the mortgagee."

The presiding justice refused to give this instruction, but, in order to give progress to the case, instructed the jury as follows: "It is enough if Mr. Carr, who was the mortgagor and in possession, agreed to it, the building having been put on after the mortgage. * * * Therefore, I wish you to understand distinctly that I rule that Mrs. Ekstrom is not bound to show that the mortgagee consented to this arrangement. It is enough for her to show that Mr. Carr, the mortgagor in possession, did consent to it, if he did."

The effect of this instruction was that a mortgagor in possession can give a third party authority to erect buildings on the mortgaged property, without the consent of the mortgagee, so that such third party can hold the buildings against the mortgagee or his assignee. This is not the law.

Fixtures actually or constructively annexed to the realty after the execution of a mortgage of the real estate become a part of the mortgage security, and, while the mortgage is in force, cannot be removed or otherwise disposed of by the mortgagor, or by one claiming under him, without the consent of the mortgagee. Wight v. Gray, 73 Me. 297. The precise question here involved was decided in the case cited. In that case the building in controversy was erected upon mortgaged premises, by the husband of the mortgagor, with her consent, but without the...